Defense Counsel for FTC Investigations

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Find Out What You Need to Know if You or Your Company is the Target of an FTC Investigation

Brian Kuester
Attorney Brian Kuester
Team Lead
Former US Attorney
Former District Attorney
Ellen Comley
Attorney Ellen Comley
Defense Team Lead
Senior Counsel
Roger Bach
Roger Bach
Team Consultant
Former Special Agent (OIG)

If the U.S. Federal Trade Commission (FTC) has launched an investigation into you or your company, there is a lot you need to know. While it is possible to successfully defend against an FTC investigation in many cases, doing so requires a clear understanding of the risks, challenges, and opportunities involved.

At The Criminal Defense Firm, we have significant experience on both sides of FTC investigations. Not only have we successfully represented investigation targets as defense counsel, but several of our attorneys previously served as white-collar federal prosecutors at the U.S. Department of Justice (DOJ). When the FTC uncovers evidence of criminal misconduct during an investigation, it refers the matter to the DOJ for criminal prosecution. Since we are able to examine our clients’ investigations from the government’s point of view, we are able to offer deep insights, and we are able to take an approach that has proven successful in more than 95% of cases.

What To Expect During an FTC Investigation

What can you expect during an FTC investigation, and what can the federal defense team at The Criminal Defense Firm do to help? Here is an overview of what you can expect (in most cases) when you engage our firm for FTC defense:

1. Determining Response Obligations and Submitting Timely (Though Not Necessarily Full) Responses

When facing an FTC investigation, it is critical to submit a timely response to all requests for information. This includes civil investigative demands (CIDs) and administrative subpoenas, among other types of requests. However, while it is important to address these requests in a timely manner, this does not necessarily mean that it is in your (or your company’s) best interests to fully comply with the FTC’s demands.

In many cases, it will be possible—and beneficial—to negotiate the scope of the FTC’s request. Engaging in timely negotiations can open a dialogue that fosters future cooperation as well. Our FTC defense attorneys can help you understand the burdens and risks of compliance, the likelihood of success in negotiations, and the steps involved in submitting a response that satisfies your (or your company’s) obligations without unnecessarily enhancing your (or its) exposure. We can then take all appropriate defensive measures on your (or your company’s) behalf.

2. Determining the Focus and Scope of the Investigation

Another critical step in the process of successfully defending against an FTC investigation is to determine the investigation’s focus and scope. The FTC has enforcement jurisdiction over a broad range of federal statutes and regulations; and, to present an effective defense, you need to know what you need to defend against.

Our attorneys can engage with the FTC to gain a clear understanding of the issues or allegations underlying the investigation. We can glean critical information from any target letters, CIDs, or administrative subpoenas you may have received as well. Once we do this, then we can shift our focus to evaluating the issues or allegations at hand and formulating a substantive defense strategy.

3. Understanding What (if Anything) the FTC is Going to Find

Along with understanding why the FTC is investigating, it is also imperative to quickly determine what (if anything) the FTC is going to find through its investigative efforts. For companies, this involves conducting an efficient (but still comprehensive) internal document review and risk assessment.

If companies try to do this on their own, their efforts (and their findings) may be discoverable by the FTC. However, by working under the oversight of their defense counsel, companies can secure the protection of the attorney-client privilege. This is critical—and it is equally critical to ensure that the internal review is both (i) uncompromised and (ii) focused on accurately identifying all pertinent records and information.

4. Defending Against the FTC’s Investigative Tactics

In addition to using a variety of investigative tools, FTC agents also use a variety of investigative tactics. Many are very good at extracting information from witnesses, subjects, and targets without letting on why they are gathering information or what risks providing this information entails. 

As a result, many witnesses, subjects, and targets don’t realize what they have done until it is already too late. At The Criminal Defense Firm, we help our clients and their personnel avoid these types of costly mistakes. We can provide representation for all interactions with the FTC; and, in many instances, we can deal with the FTC directly on behalf of our clients.

5. Evaluating All of the Various Risks Involved

Although the FTC does not have criminal enforcement authority, FTC investigations can lead to criminal prosecution in many cases. The FTC has a Criminal Liaison Unit that works with the DOJ to pursue criminal charges when warranted. As a result, the risks involved in facing an FTC investigation can potentially include:

  • Injunctions
  • Restitution
  • Civil monetary penalties
  • Criminal fines
  • Federal incarceration

When we represent clients in FTC investigations, one of our top priorities is keeping the investigation civil in nature. This keeps criminal fines and federal incarceration off of the table. But, if the circumstances are such that this is no longer possible (i.e., if a client engages too late in the investigative process), then we may need to focus on protecting our client at the grand jury stage, during the pre-trial phase, or at trial.

6. Formulating and Executing a Targeted Defense Strategy

After taking the preliminary steps discussed above, we can shift focus to formulating and executing a targeted defense strategy. To be effective, an FTC investigation defense strategy must take into account all pertinent considerations, including (but not limited to):

  • What triggered the FTC’s investigation
  • The focus and scope of the investigation
  • The current status of the investigation
  • The evidence the FTC is likely to uncover
  • All applicable federal laws and regulations

At The Criminal Defense Firm, we craft defense strategies that are custom-tailored to the circumstances of each client’s case. We work with our clients to help them make strategic decisions, and then we execute while relying on our past experience on both sides of high-stakes FTC enforcement matters.

7. Working to Resolve the FTC’s Investigation Without Civil Penalties or a Criminal Referral

When representing clients during FTC investigations, our primary objective is to resolve the investigation without civil penalties or a criminal referral—and we have been successful in doing so in the majority of cases. We take a strategic approach that carefully balances collaboration with relentless defense, and we use our clients’ compliance programs and other relevant documentation to their advantage when it makes sense to do so.

As with all high-stakes federal matters, there is no one-size-fits-all approach to defending against an FTC investigation. The facts matter, and the devil is in the details. By taking a comprehensive and client-focused approach, we are able to execute informed and targeted defense strategies that protect our clients as efficiently and comprehensively as possible.

FAQs: Successfully Defending Against an FTC Investigation

Why Is the FTC Investigating My Company?

If the FTC is investigating your company, there could be a variety of reasons why. The FTC investigates a broad range of federal violations in the areas of antitrust and consumer protection. As your company’s defense counsel, one of our first priorities will be to discern the focus of the FTC’s investigation so that we can structure our subsequent efforts accordingly.

What Should I Do if I Have Received a Target Letter or CID from the FTC?

If you have received a target letter or CID from the FTC, you should consult with a federal defense lawyer promptly. Whether you are a witness, subject, or target, you will need to make informed decisions based on the advice of counsel in order to avoid putting yourself (or your company) in jeopardy.

Are FTC Investigations Criminal in Nature?

No, FTC investigations are not civil in nature. The FTC only has civil enforcement authority. However, if agents uncover evidence of criminal wrongdoing during an investigation, the FTC’s Criminal Liaison Unit can engage with the DOJ to pursue criminal charges.

Can FTC Investigations Lead to Criminal Prosecution?

Yes, FTC investigations can—and frequently do—lead to criminal prosecution. Several of the statutes that fall within the FTC’s enforcement jurisdiction include provisions for criminal prosecution, and the FTC’s Criminal Liaison Unit regularly works with the DOJ to prosecute both companies and individuals.

Do I Need to Hire a Defense Lawyer for an FTC Investigation?

If the FTC is investigating you or your company, you should hire a defense lawyer as soon as possible. While the risks of facing an FTC investigation can be substantial, it is possible to mitigate (if not entirely avoid) these risks in many cases. But, doing so requires experienced legal representation.

Contact Us to Inquire About FTC Investigation Defense  

If you need to engage defense counsel for an FTC investigation, we encourage you to contact us promptly for more information. To speak with a senior federal defense lawyer at The Criminal Defense Firm in confidence, call 866-603-4540 or get in touch online now.

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